Keywords
Summary

Keywords

1 Actions for failure to fulfil obligations - Pre-litigation procedure - Whether the Member State is required at that point to raise all its pleas in law - No such obligation

(EC Treaty, Art. 169 (now Art. 226 EC))

2 Member States - Obligations - Failure to fulfil obligations - Justification put forward - Interests of public safety - Whether acceptable - Conditions

(EC Treaty, Arts 36, 48, 56 and 223 (now, after amendment, Arts 30 EC, 39 EC, 46 EC and 296 EC) and Arts 169 and 224 (now Arts 226 EC and 297 EC))

3 Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Option for the Member States to maintain certain exemptions on a transitional basis - Scope - Introduction of new exemptions - Not permissible

(Council Directive 77/388, Art. 28(3)(b))

4 Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Exemption of certain operations relating to warships and aircraft referred to in points 23 and 25 of Annex F - Extension to military equipment - Not permissible

(Council Directive 77/388, Art. 28(3)(b), and Annex F, points 23 and 25)

Summary

1 It would be contrary to the general principle of respect for the rights of the defence to require all pleas in law put forward by a Member State in its defence in proceedings under Article 169 of the Treaty (now Article 226 EC) be raised during the pre-litigation procedure. Once the subject-matter has been defined, the Member State has the right to raise all the pleas available to it in order to defend itself, there being no rule of procedure requiring it to put forward all the arguments in its defence during the pre-litigation procedure.

2 The only articles of the Treaty which provide for derogations in situations which may involve public safety are Articles 36, 48, 56, and 223 (now, after amendment, Articles 30 EC, 39 EC, 46 EC and 296 EC) and Article 224 (now Article 297 EC), which deal with exceptional and clearly defined cases and which, because of their limited character, do not lend themselves to a wide interpretation.

Accordingly, it is for the Member State which seeks to rely on those exceptions, in justification of its failure to fulfil obligations, to furnish evidence that the exemptions in question do not go beyond the limits of such cases.

3 A Member State which, in implementation of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, has made VAT payable on certain operations cannot then, in exempting those activities from VAT, claim that it is entitled to do so in exercise of the option provided for by Article 28(3)(b) of the Sixth Directive, under which the operations listed in Annex F thereto may continue to benefit from exemption for a transitional period.

4 Article 28(3)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes - inserted therein by Directive 91/680 - which authorises the Kingdom of Spain to exempt from VAT the activities set out in paragraphs 23 and 25 of Annex F, that is to say, certain operations relating to aircraft and warships, being an exception, is to be interpreted strictly. By exempting from VAT intra-Community imports and acquisitions of arms, ammunition and equipment exclusively for military use, other than those related to the aircraft and warships, that Member State fails to fulfil its obligations under the Directive.